N.M. R. Civ. P. Dist. Ct. 1-045
A command to produce evidence or to permit inspection, copying, testing, or sampling may be joined with a command to appear at trial or hearing or deposition, or may be issued separately. A subpoena may specify the form or forms in which electronically stored information is to be produced.
N.M. R. Civ. P. Dist. Ct. 1-045
Formerly, pre-trial production of documents or tangible items in the possession or control of a nonparty could only be obtained by a subpoena issued in conjunction with a notice of deposition of the person in possession of the documents.
In 1991, the federal rule was amended to allow pretrial subpoenas of documents or tangible items without the necessity of noticing and scheduling a simultaneous deposition. In 1997, the New Mexico Supreme Court similarly amended Rule 1-045 NMRA.
As amended in 1991, the federal rule required that "[p]rior notice" of any commanded production shall be served on each party, Fed. R. Civ. P. 45(b)(1). "The purpose of the notice provision is to afford other parties an opportunity to object to the production. . . . " Fed. R. Civ. P. 45 Committee Comment.
The 1997 amendment of Rule 1-045 NMRA provided for notice to all parties "[p]rior to or at the same time" as service of the subpoena. Rule 1-045(B)(2)(b) NMRA. As demonstrated in Wallis v. Smith, 2001-NMCA-017, 130 N.M. 214, 22 P.2d 682, cert. denied 23 P.3d 929, the New Mexico rule could be construed to permit a party to hand deliver a subpoena for documents and simultaneously mail notice to other parties with the possible result that the nonparty might comply with the subpoena before other parties received notice of its contents and had an opportunity to object to its contents under Rule 1-045(C)(2)(b) NMRA.
The 2002 amendment to Rule 1-045(C)(2) NMRA solves this problem by providing a fourteen (14) day period before responding to assure that "a person who has a legal interest in or the legal right to possession of the designated material or premises" or any party will have an opportunity to object to the subpoena before the witness responds.
The federal rule, requiring "[p]rior notice" is ambiguous, though it has been construed to require "reasonable notice" prior to service of the subpoena. Biocore Medical Techs., Inc. v. Khosrowshahi, 181 F.R.D. 660, 667 (D. Kan. 1998). The committee considered but rejected this construction, preferring to set a specific time that will assure prior notice, while also recognizing the possibility that a court might reduce the time under appropriate circumstances.
1997 Amendment of Rule 1-045
1. Introduction
The New Mexico Rules of Civil Procedure for the District Courts were based upon the Federal Rules of Civil Procedure. Although the New Mexico rules diverge from the Federal Rules when appropriate, the committee regularly reviews New Mexico's Rules of Civil Procedure for the District Courts when the Federal Rules are modified. Federal Rule 45 - Subpoenas -underwent significant change as a result of amendments that went into effect in December 1991 and was further modified by amendments effective in December 1995. The committee's reevaluation of Rule 1-045 NMRA in light of the changes in the federal rule prompted amendments to Rule 1-045 NMRA and the adoption of Rule 1-045 NMRA in its current form.
2. Overview
Rule 1-045 NMRA formerly contained different provisions for subpoenas for attendance at trial or hearing and for attendance at a deposition. The existing rule follows the model of the current federal rule which generally eliminates that distinction. Rule 1-045 NMRA formerly had the effect of barring parties from obtaining items such as documents or inspecting premises except in conjunction with a subpoena setting a deposition of a witness. The existing rule follows the current federal rule which allows subpoenas for production of items or inspection of premises from non-parties without the necessity of scheduling and conducting a deposition at the same time. The rule provides procedural protections to assure advance notice to parties that a party has issued a subpoena for production or inspection.
The rule provides for statewide service of both trial and hearing subpoenas and deposition and production subpoenas. Rule 1-045(B)(1) NMRA.
Formerly, Rule 1-045 NMRA placed significant geographic limitations upon the place that depositions might be conducted in the absence of a court order. Some of those limitations depended upon the place of service of the subpoena. The rule eliminates the significance of the place of service of the subpoena as a factor in setting the place of deposition and modifies but does not eliminate other limitations in the former rule.
Rule 1-045 NMRA formerly authorized only the district court clerk to issue subpoenas. The existing rule follows the current federal rule which allows a party's attorney to issue subpoenas in the name of the court.
3. Who may issue subpoenas
Formerly, Rule 1-045 required that the clerk issue and sign all subpoenas. Following the model of the current federal rule, Rule 1-045 NMRA now authorizes an attorney for a party to issue and sign subpoenas in the attorney's capacity as an officer of the court. Any attorney authorized to practice law in New Mexico who is serving as attorney to a party may issue trial and hearing subpoenas as well as deposition and production and inspection subpoenas.
The clerk continues to have power to issue subpoenas. A clerk's subpoena will be of particular use to a party who is not represented by counsel. The clerk of the court for the district in which the matter is pending is the appropriate person to issue subpoenas for service anywhere in the state.
4. Form and content of subpoenas
A subpoena may (1) command a person to attend at trial or attend a hearing, (2) command a person to appear for a deposition, (3) command a person to permit inspection of premises, (4) command a person to produce items at trial or a hearing, or (5) command a person to produce items for discovery or inspection prior to trial. A subpoena to produce items or permit inspection may, but need not, also command the person to attend a trial, hearing, or deposition. Thus, Rule 1-045 NMRA now permits a party to subpoena items or obtain inspection without simultaneously scheduling a deposition.
Following the model of the current federal rule, subpoenas no longer need to contain the seal of the court. They must, however, now contain the civil action number of the case for which the subpoena is issued. Rule 1-045(A)(1)(d) NMRA now provides that subpoenas shall be substantially in the form approved by the Supreme Court and the Court has approved forms consistent with the requirements of Rule 1-045 NMRA. See Civil Form 4-505 NMRA.
5. Service of subpoenas
Rule 1-045 NMRA now explicitly authorizes service of process anywhere in the state. When a person is beyond the subpoena power of the New Mexico District Court, Rule 1-045 NMRA provides that the party to the New Mexico proceeding who seeks to subpoena items, conduct inspection, or conduct a deposition in another state shall do so in the manner provided by law or rule of the other state. See, e.g., Mass. Gen. Laws Ann. 123A Sec. 11 (West 1985) ("Discovery Within Commonwealth for Proceedings Outside Commonwealth").
As in former Rule 1-045 NMRA, service of the subpoena normally must be accompanied by the tender of designated per diem expenses and mileage except in situations provided for in Rule 1-045(B)(2)(a) NMRA and when subpoenas are issued in behalf of the state, a state officer, or a state agency. The rule now specifically requires that the full per diem be tendered even if the party believes that the required attendance will not take an entire day. Where attendance is required for more than one day, the full per diem for each additional day must be paid prior to the commencement of proceedings each day.
Rule 1-045(B)(2) NMRA formerly provided that the failure to tender required per diem expense and mileage fees did not invalidate the subpoena but merely justified the imposition of appropriate sanctions. That provision has been omitted from Rule 1-045 NMRA. The committee intends that henceforth the failure to tender required expense and mileage fees shall invalidate the subpoena and justify non-compliance with the subpoena's command. The burden of compliance rests upon the person on whose behalf the subpoena is served.
Because Rule 1-045 NMRA already provided for service by any person not a party who is at least eighteen (18) years old, specific references to the authority of sheriffs and deputies to serve subpoenas was superfluous and has been omitted in this rule. This modification follows the model of the current federal rule.
6. Notice of service of subpoena
Whenever a party schedules a deposition (whether or not a subpoena is issued compelling attendance at the deposition), Rule 1-030(B)(1) NMRA requires that notice of the deposition be sent to each party. When a subpoena for production or inspection is served in conjunction with the notice of deposition, the party seeking production at the deposition must also send notice of the issuance of the subpoena to each party along with the notice of the deposition. Id.
Because Rule 1-045 NMRA formerly required that subpoenas for pre-trial production or inspection could only be issued in conjunction with the taking of a deposition, the notice requirement of Rule 1-030(B)(1) NMRA effectively assured that all parties would receive notice of every pre-trial attempt by a party to compel production and inspection against a non-party. Rule 1-045 NMRA now authorizes issuance of a subpoena for pre-trial production without the necessity of a simultaneous deposition, Rule 1-045(A)(1)(d) NMRA, with the result that the notice requirement in Rule 1-030(B)(1) NMRA no longer assures that all parties will receive notice of pre-trial production and subpoenas. To fill this notice gap, Rule 1-045(B)(2) NMRA now requires that prior to or simultaneously with the service of pre-trial inspection or production subpoenas the party on whose behalf the subpoena is served must give notice to all parties in the lawsuit in the manner required by Rule 1-005 NMRA. This provision follows the model of the current federal rule.
7. Place of attendance or production
Service of a subpoena may be made anywhere in the state. Rule 1-045(B)(1) NMRA. As was the case under former Rule 1-045 NMRA, if the subpoena commands attendance at a trial or a hearing, the person served with the subpoena must appear as commanded anywhere in the state. Rule 1-045(B)(4) NMRA.
Rule 1-045 NMRA modifies the former rule concerning the place in which a deposition of a subpoenaed witness may be scheduled. The rule formerly contained separate provisions for the place of depositions, depending upon whether the person subpoenaed was a resident of the judicial district in which the deposition was to be taken. In the case of nonresidents of the judicial district, the former rule focused on the place of service, and required that the deposition be held within forty (40) miles of the place of service of the subpoena unless the court ordered otherwise.
Rule 1-045 NMRA eliminates the distinction between residents and nonresidents of the judicial district and does not take into account the place of service in setting the proper place for the deposition. Instead, Rule 1-045 NMRA provides that all persons may be required to attend a deposition only within one hundred (100) miles of the place of their residence, their place of employment or where they transact business unless another place is fixed by order of the court. Rule 1-045(B)(3) NMRA.
If a person declines to honor a subpoena that is inconsistent with the geographical limitations of this rule, the person cannot be held in contempt for failure to attend the deposition unless the court entered an order compelling attendance at that place. Rule 1-045(E) NMRA NMRA.
8. Proof of service of subpoena
The Supreme Court has approved a form for proof of service of a subpoena. See Civil Form 4-505 NMRA. When proof of service of the subpoena must be filed under Rule 1-005(D) NMRA, Rule 1-045(B)(5) NMRA requires that the form of the proof of service be in substantial compliance with the approved form.
9. Duty to avoid misuse of subpoena authority
For the first time, Rule 1-045 NMRA imposes an explicit duty on parties and attorneys responsible for subpoenas to take reasonable steps to avoid undue burden or expense on persons subject to the subpoenas. Rule 1-045(C)(1) NMRA. The court may sanction parties or attorneys who violate this rule with appropriate sanctions including imposition of an order to pay the witness lost earnings and attorney fees. Id.
10. Subpoenas for production or inspection
Subpoenas for production of tangible items or inspection of premises now may issue without the necessity for setting a deposition at the same time. Rule 1-045(A)(1)(d) NMRA. When a subpoena for production or inspection is issued, the party responsible for the issuance of the subpoena must provide timely notice to all parties of the issuance of the subpoena. Rule 1-045(B)(2) NMRA.
The rule formerly provided only that the subpoenaed person "produce" the items. The rule now requires that the person "produce and permit inspection and copying" of the books, documents or tangible items. Rule 1-045(A)(1)(d) NMRA.
The rule formerly provided that the subpoena must identify the items subject to the subpoena with reasonable particularity. The committee has eliminated this explicit requirement in deference to its preference to model Rule 1-045 NMRA after the federal rule, but believes that the requirement that the items be "designated", Rule 1-045(A)(1)(c) NMRA, incorporates the former requirement of reasonable particularity in the description of the items sought. The former rule also explicitly limited the scope of subpoenaed items to those within the scope of discovery permitted by Rule 1-026(B) NMRA. The committee has eliminated this explicit limitation also in deference to its preference to model Rule 1-045 NMRA after the federal rule, but assumes that specific references to protection for trade secrets, expert opinions and the like, now found in Rule 1-045(C)(3)(b) NMRA, which are rooted in Rule 1-026 NMRA, suffice to indicate that the subpoena of items continues to be subject to the limitations of discovery in Rule 1-026 NMRA.
The person who receives a subpoena to produce items or permit inspection of premises need not appear in person at the designated time and place unless that person is also commanded in the subpoena to appear for a deposition, trial or hearing. Rule 1-045(C)(2) NMRA .
The person who receives a subpoena to produce items or permit inspection of premises must do so unless the person or a party or a party serves timely (see Rule 1-045(C)(2)(b) NMRA) objections on all parties or files a motion to quash. This modifies the federal rule by requiring service on all parties.
If no objections are served, the person responding shall produce the documents either as they are kept in the ordinary course of business or labeled and organized to correspond with the categories of the demand. Rule 1-045(D)(1) NMRA.
If timely objections are served, the subpoenaed person need not comply with the subpoena unless and until the person seeking the subpoenaed items obtains a court order compelling the production. Rule 1-045(C)(2)(b) NMRA. Alternatively, the person who opposes compliance with the subpoena and serves timely notice of objections may file a timely motion seeking to quash or modify the subpoena. Rule 1-045(C)(3)(a) NMRA.
Rule 1-045 now lists grounds for seeking an order of protection from a subpoena, Rule 1-045(C)(3), and provides guidelines for the court to use in ruling on motions to quash or modify a subpoena. Id. These new provisions follow the current federal rule.
11. Taking a deposition in New Mexico for an action pending outside New Mexico
A New Mexico statute authorizes New Mexico courts to order the deposition of persons found in this state for use in conjunction with legal proceedings outside New Mexico. See NMSA 1978, §§ 38-8-1 to -3. Rule 1-045(B)(6) NMRA makes reference to new Rule 1-045.1 NMRA, which authorizes the issuance of subpoenas for depositions and other discovery in New Mexico for an action pending outside of New Mexico.
Committee commentary for 2007 amendment. -
See the 2007 committee commentary to Rule 1-026 NMRA for additional information.
Committee commentary for 2009 amendment. -
See the 2009 committee commentary to Rule 1-026 NMRA for additional information.
[As amended by Supreme Court Order No. 09-8300-007, effective May 15, 2009; as amended by Supreme Court Order No. 09-8300-018, effective August 7, 2009; as amended by Supreme Court Order No. 20-8300-005, effective for all cases pending or filed on or after December 31, 2020.]
ANNOTATIONS The second 2009 amendment, approved by Supreme Court Order No. 09-8300-018, effective August 7, 2009, in the first sentence of Paragraph B(6), deleted "for taking of a deposition" and replaced "Section 38-8-1 NMSA 1978" with "Rule 1-045.1 NMRA". The amendment also deleted "the statute as a guide to practitioners" and added "new Rule 1-045.1 NMRA, which authorizes the issuance of subpoenas for depositions and other discovery in New Mexico for an action pending outside of New Mexico" in item 11 of the 1997 Amendment of Rule 1-045 of the committee commentary. The first 2009 amendment, approved by Supreme Court Order No. 09-8300-007, effective May 15, 2009, in Subparagraph (1)(c) of Paragraph A, after "produce and permit inspection", changed "and copying of designated books, document or tangible things" to "copying, testing or sampling of designated documents, electronically stored information or tangible things"; in Subparagraph (1)(d) of Paragraph A, in the second sentence, after "permit inspection", added "copying, testing or sampling" and added the last sentence; in Subparagraph (2)(a) of Paragraph C, after "permit inspection", changed "and copying of designated books, papers, documents or tangible things" to "copying, testing or sampling of designated electronically stored information, documents or tangible things"; in Subparagraph (2)(a)(i) of Paragraph C, after "inspection", added "copying, testing or sampling"; in Subparagraphs (2)(b)(i) and (2)(b)(ii) of Paragraph C, and after "copying", added "testing or sampling"; in Subparagraph (2)(b)(iii) of Paragraph C, after "copy", added "test or sample"; in Subparagraph (1) of Paragraph D, added Subparagraphs (b), (c) and (d); and in Paragraph D, added Subparagraph (2)(b). The 1997 amendment, effective January 1, 1998, rewrote this rule to such an extent that a detailed comparison is impracticable.
For witness fees, see Sections 10-8-1 to 10-8-8 and 38-6-4 NMSA 1978. For the subpoena power of the director of the Financial Institutions Division of the Commerce and Industry Department, see Section 58-1-34 NMSA 1978. For the subpoena power and enforcement thereof of the Oil Conservation Commission, see Sections 70-2-8 and 70-2-9 NMSA 1978. For the application of this rule, insofar as subpoena witnesses, in criminal cases, see Paragraph A of Rule 5-613 NMRA. Compiler's notes. - Paragraph A may supersede 38-6-1, 38-6-2 NMSA 1978 insofar as they relate to subpoenas of witnesses before the district courts. Paragraph D, together with Rules 1-028, 1-030, 1-031 and 1-032 NMRA, is deemed to have superseded 45-101 to 45-119, C.S. 1929 (36-5-21 to 36-5-39, 1953 Comp., now repealed), insofar as those provisions related to the taking of depositions for use in the district courts. Court permission not required to subpoena witness. - Although the trial court refused to subpoena a psychologist as requested by defendant after trial had begun, the defendant himself could have the doctor subpoenaed without court permission, and had the trial court refused to allow him to testify, the defendant would in that case have to make an offer of proof to preserve error. State v. Melton, 1977-NMSC-014, 90 N.M. 188, 561 P.2d 461. District courts authorized to hear duces tecum subpoena application for commission records. - The district courts are authorized and directed, upon proper application for a subpoena duces tecum under this rule to hear and determine whether the records, reports and files of the governor's organized crime prevention commission may be subpoenaed, and if so, upon what conditions. If the district court orders that a subpoena duces tecum be issued, an in camera hearing shall be held to determine which records, reports and files of the commission shall be produced. In re Motion for a Subpoena Duces Tecum, 1980-NMSC-010, 94 N.M. 1, 606 P.2d 539. Redress of improper use of process. - The improper use of process of a court may be redressed by a motion to quash, inquiry into the matter under the supreme court disciplinary rules, a motion to set aside judgment under Rule 60(b)(6) (see now Rule 1-060 NMRA) or a determination of whether such an action amounts to facts giving rise to an action for abuse of process. Under proper circumstances, the matter may also constitute contempt of court. Poorbaugh v. Mullen, 1982-NMCA-141, 99 N.M. 11, 653 P.2d 511. A party has an obligation to subpoena a witness if he wants to assure his presence. Gallegos v. Yeargin W. Constructors, 1986-NMCA-087, 104 N.M. 623, 725 P.2d 599. Trial court properly quashed subpoena issued one day before trial. Udall ex rel. State v. Montoya, 1998-NMCA-149, 126 N.M. 273, 968 P.2d 784, cert. denied, 126 N.M. 532, 972 P.2d 351. An on-call subpoena commanding a police officer to appear at a criminal hearing was effective for attendance at the hearing on a later date than specified in the subpoena and an order holding the officer in criminal contempt of court for failure to appear was proper. State v. Klempt, 1996-NMCA-004, 121 N.M. 250, 910 P.2d 326. Subpoena may not be used to sidestep discovery procedure. - All discovery, including discovery under this rule, is limited by Rule 1-026 NMRA to the acquisition of information "regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action". Thus, once a privilege is asserted in response to interrogatories, counsel cannot unilaterally disregard the privilege and then issue subpoenas to sidestep the procedure outlined in Rule 1-033 NMRA for resolving the dispute. Wallis v. Smith, 2001-NMCA-017, 130 N.M. 214, 22 P.3d 682, cert. denied, 130 N.M. 254, 23 P.3d 929. Law reviews. - For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961). For article, "Fathers Behind Bars: The Right to Counsel in Civil Contempt Proceedings," see 14 N.M.L. Rev. 275 (1984). Am. Jur. 2d, A.L.R. and C.J.S. references. - 17 Am. Jur. 2d Contempt §§12, 138; 20 Am. Jur. 2d Costs §49; 23 Am. Jur. 2d Deposition and Discovery §§148 to 150; 81 Am. Jur. 2d Witnesses §§5 et seq., 68 et seq. Validity of statute making concealment of or failure to produce books or papers presumptive evidence, 4 A.L.R. 471. Inconvenience or expense as excuse for disobeying subpoena duces tecum, 9 A.L.R. 163. Right to enforce production of papers or documents by subpoena duces tecum or other process, as affected by unlawful means by which the knowledge of their existence was acquired, 24 A.L.R. 1429. Mandamus to compel court or judge to require witnesses to testify or produce documents, 41 A.L.R. 436. Service of a subpoena as arrest within constitutional or statutory immunity of members of legislature or others from arrest, 79 A.L.R. 1214. Privilege against self-incrimination as justification for refusal to comply with subpoena requiring production of books or documents of private corporation, 120 A.L.R. 1102. Practice or procedure for testing validity or scope of the command of subpoena duces tecum, 130 A.L.R. 327. Use of subpoena to compel production or use of as evidence of records or writings or objects in custody of court or officer thereof, 170 A.L.R. 334. Dismissal of action for failure or refusal of plaintiff to obey court order, 4 A.L.R.2d 348, 56 A.L.R.3d 1109, 27 A.L.R.4th 61, 32 A.L.R.4th 212, 3 A.L.R.5th 237. Form, particularity and manner of designation required in subpoena duces tecum for production of corporate books, records and documents, 23 A.L.R.2d 862. Construction and effect of Rules 30(b), (d), 31(d), of the Federal Rules of Civil Procedure, and similar state statutes and rules, relating to preventing, limiting, or terminating the taking of depositions, 70 A.L.R.2d 685. Compelling expert to testify, 77 A.L.R.2d 1182, 66 A.L.R.4th 213. Subpoena duces tecum for production of items held by foreign custodian in another country, 82 A.L.R.2d 1403. Limiting number of noncharacter witnesses in civil case, 5 A.L.R.3d 169. Propriety and prejudicial effect of limiting number of character or reputation witnesses, 17 A.L.R.3d 327. Privilege against self-incrimination as ground for refusal to produce noncorporate documents in possession of person asserting privilege but owned by another, 37 A.L.R.3d 1373. Who has possession, custody or control of corporate books or records for purposes of order to produce, 47 A.L.R.3d 676. Right of independent expert to refuse to testify as to expert opinion, 50 A.L.R.4th 680. Compelling testimony of opponent's expert in state court, 66 A.L.R.4th 213. Adverse presumption or inference based on party's failure to produce or examine that party's attorney - modern cases, 78 A.L.R.4th 571. Adverse presumption or inference based on party's failure to produce or examine witness who was occupant of vehicle involved in accident - modern cases, 78 A.L.R.4th 616. Adverse presumption or inference based on state's failure to produce or examine law enforcement personnel - modern cases, 81 A.L.R.4th 872. Adverse presumption or inference based on party's failure to produce or examine transferor, transferee, broker, or other person allegedly involved in transaction at issue -modern cases, 81 A.L.R.4th 939. Requirements, under Rule 45(c) of Federal Rules of Civil Procedure and Rule 17(d) of Federal Rules of Criminal Procedure, relating to service of subpoena and tender of witness fees and mileage allowance, 77 A.L.R. Fed. 863. Appealability by client of denial of motion to quash subpoena directed to attorney or order compelling attorney to testify or produce documents - federal criminal cases, 109 A.L.R. Fed. 564. 97 C.J.S. Witnesses §§ 19 to 34, 45.